Government Affairs: Wisconsin Re-Opens as Supreme Court Invalidates State's Safer-at-Home Order

On May 13, 2020, the Wisconsin Supreme Court declared the state’s Safer-at-Home order unlawful, invalid, and unenforceable. When the ruling was first announced, businesses faced some uncertainty as to how to operate. However, it now appears there are no statewide requirements governing their operations. By a 4-3 decision the court limited Evers’s ability to make statewide rules during emergencies such as a global pandemic, instead requiring him to work with the state legislature on how the state should handle the outbreak. County, Kenosha County) instituted their own local orders. However, some of those have since been lifted out of concern for a lawsuit or have expired, including those effecting most of the Milwaukee suburbs. Notably, Dane County and the Cities of Milwaukee and Madison continue to have versions of a Safer-At-Home order still in place.

The justices wrote that the court was not challenging the Governor’s power to declare emergencies, “but in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.” Notably, the court allowed Emergency Order #28 to remain valid as to school closings for the 2019-2020 school year, which means that while businesses may open, schools remain closed.

Neither the Governor nor the legislature have yet to offer replacement guidance on COVID-19 suppression measures. A scope statement for emergency rulemaking was recently withdrawn by the Department of Health Services (DHS) for lack of legislative support. Many businesses have voluntarily adopted standards which require physical distancing, capacity limits or call for face coverings. However, there are no statewide requirement to do so. Each business is left to determine for themselves what measures, if any, they wish to put in place.

Immediately following the ruling, a few Wisconsin counties and municipalities (i.e. Milwaukee, Madison, Dane County, Brown As businesses around the state gradually begin to open up, there is concern about exposure to lawsuits that may be brought by employees or customers that contract the virus. A group of businesses trade organizations with the Wisconsin Civil Justice Council (WCJC) have been working on a legislative proposal that would provide civil immunity for businesses that reopen during the COVID-19 pandemic. Such a proposal requires legislative approval and signature from the Governor and the timeline is uncertain if and when such a measure would pass.

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